Looking back at 2015, we see that a remarkable number of events took place, problems surfaced and trends emerged regarding e-discovery and the creation and usage of electronically stored information (ESI) in general. This should not be surprising, since in pretty much every part of our lives—from computers in the workplace to terrorism and national security, to the addition of key computer components to so many of the other machines and devices we regularly use and depend upon, to online college courses—the digital world has become so pervasive and accepted so as to blend into the background, in a way it had not five or 10 years ago, when so much of this was new and challenging to most people. As we start 2016, it is worth looking at what emerged, what was resolved, and what we should expect to see as we head toward 2017.
• Changes to the federal rules. The long-discussed changes to the Federal Rules of Civil Procedure went into effect Dec. 1. The most discussed and prominent changes were to Rules 26(b) and 37(e). Rule 26(b) now mandates that the cost of e-discovery be “proportional to the needs of the case.” Rule 37(e) specifies the criteria for the finding of spoliation by the court and, depending upon the intent of the spoliating party and the consequences of that spoliation, what sanctions may be imposed. Spoliation occurs only if ESI “that should have been preserved” for litigation is lost because “a party failed to take reasonable steps to preserve it,” and “it cannot be restored or replaced”; the loss must have led to “prejudice to another party”; in response to that prejudicial loss, the court may “order measures no greater than necessary to cure the prejudice”; and, to impose a punitive sanction, such as issuing an adverse inference instruction or entering a default judgment. The court must find “that the party acted with the intent to deprive another party of the information’s use in the litigation.”
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